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This dog won't hunt

Posted 5/18/18 by Megan Rhyne

You don't have to have a dog in the hunt to be ticked by this story

This story should really bother you. It should bother you, not because you know any of the people involved, the city or the situation that prompted it. It should bother you on principle: A court order was secured to prohibit public disclosure of information because a citizen who frequently disagrees with city council decisions had requested it under FOIA.

Here's the thumbnail sketch of what prompted the court order, starting back in 2014 when the city signed an agreement with Dr. Noah Boaz to guarantee an $800,000 Tobacco Region Opportunity Fund grant to help launch a proposed medical school. When Boaz failed to meet various targets set by the grant, the Tobacco Region Revitalization Commission asked for most of the money back. Boaz said he couldn't repay the grant, which would mean the city could be on the hook.

Ural Harris began asking for records related to this imbroglio back in September and again in November. He received some records and not others. He was told at a Jan. 9 meeting that the records were part of an ongoing investigation and a judge had ordered the city attorney not to disclose them. Here's the video for that meeting (forward to the 1:15:15 mark for Harris' comments; the court order is referenced at approximately 1:16:30).

Harris has called VCOG a couple of times. I've never met him in person, nor have I met any of the other players involved here. When I talked to Harris -- precisely because I do not know the players and because I don't know the ins and outs of the underlying issue -- my focus was on his FOIA questions. He said in a March phone call that he'd never been shown the court order referenced in the January meeting, something I found odd. It may not be unusual to seek protection from disclosure for investigatory files during the investigation, but it did seem unusual for their not to be a record of the order.

That's the last I heard from Harris or about the case until this article appeared in the Martinsville Bulletin.

Judge G. Carter Greer issued an order telling the city "not disclose to any third party entity any information, documents or other evidence collected or received during the course of its investigation and for six months after the conclusion of said investigation unless directed to do so by the order of any court of competent jurisdiction."

The order is retroactive to Sept. 27, 2017, when the investigation began and around the same time as the Harris' initial FOIA requests. But if making the order retroactive was not related to Harris' request, the city attorney's comments to the Martinsville Bulletin made it clear that Harris' request was front and center when the order was sought.

Asked during a phone interview about who sought the order and why, [City Attorney Eric] Monday said “I sought that order to keep Ural Harris from meddling into” the probe.

“I specifically had Ural Harris in mind” when seeking the order, Monday emphasized.

“Ural Harris has a tendency to second guess everything the city does,” he said. “I was not going to have him (essentially) direct our investigation.”

Interestingly, according to the story, the sealing order wasn't asked for until April. The order referenced in January is not mentioned.

The mayor and vice mayor supported the court order. The city welcomes FOIA requests, the vice mayor said, but "Ural is asking for sensitive stuff.”

So, citizens are being denied records not because the records are exempt or prohibited from disclosure, but because a citizen second-guesses the city and has asked for sensitive stuff.

These simply are not not appropriate response to a FOIA request!

The policy that begins FOIA couldn't say it any better:

The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government.

...

Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law.

If the records are exempt or prohibited from release, then respond with the appropriate citation and be done with it. If the investigatory records should have been sealed from the beginining, then do that in the interest of protecting the integrity of the investigation.

But if not...if they're sensitive but not exempt...if they're sensitive but not prohibited...if they're being requested by someone who bothers the snot out of you...that's not relevant!

I may not have a dog in the Martinsville-Boaz-Tobacco-Commission hunt, but I do have a dog in the hunt for compliance with both the letter and the spirit of the public's statutory right to know what their government is doing. Harris and all citizens who seek records from their government deserve better.

Comments

This is an important comment from Twitter that prompted me to clarify in this story that it's the context of the court order (the timing, the comments about the citizen) that is most bothersome, not the fact of the court order.

1/2 "I agree, but a possible mitigating factor here is that protective orders barring disclosure of discovery materials are pretty routine in civil cases. In a way, that's what they're doing here. Our world finds it frustrating when legal things take a while in secret, but..."

2/2 "investigations often do, & as long as the public gets a full account in the end, that's defensible. (In civil cases, that happens through public access to filings.) I hope the city atty finishes a good & thorough investigation expeditiously, then tells the public all about it."